Movant, an inmate proceeding pro se, seeks permission to file a late claim
pursuant to Court of Claims Act § 10 (6) or, in the alternative, to treat
his notice of intention to file a claim as a claim pursuant to Court of Claims
Act § 10 (8) (a). The proposed claim seeks damages for certain alleged
improprieties occurring during the course of a Tier III Superintendent’s
Hearing arising from movant’s alleged violations of prison disciplinary
rules. A misbehavior report alleging violent conduct (7 NYCRR § 104.11),
property in unauthorized area (7 NYCRR 113.22), unhygienic act (7 NYCRR 118.22)
and refusing a direct order (7 NYCRR 106.10) was issued on December 14, 2006.
Movant alleges as the basis for his proposed claim that the Hearing Officer
failed to complete the hearing within 14 days following the writing of the
misbehavior report as required by the applicable regulation (7 NYCRR 251-5.1
[b]) and that the two authorizations for an extension of time to complete the
hearing issued during the course of the hearing were obtained under false
pretenses. The first authorization for an extension was obtained on December
27, 2006 and extended the time to complete the hearing to December 28, 2006.
The second request for an extension was obtained on December 29, 2006 and
extended the time to complete the hearing to December 29, 2006.

Movant contends that the first request for an extension was
“contrived” because in making the request the Hearing Officer
represented that “inmate requested more evidence” (see
proposed claim ¶¶ 7 and 12). However, according to the movant, the
only evidence he had requested was a videotape which was already in the
possession of the Hearing Officer when the request for an extension was made.
Movant contends that the true reason for the requested extension was the lack of
equipment to view the videotape. Movant supports this contention by reference
to a statement of the Hearing Officer in the hearing transcript to the effect
that they did not yet have the proper equipment to view the video (see
proposed claim ¶ 10).[1]

Movant asserts that the second extension was requested on December 29, 2006,
one day after the hearing was required to be completed, and that the Hearing
Officer’s excuse for the belated request was that the “packet came
down after office hours [and] inmate request[ed] to view videotape”
(see proposed claim ¶ 13). Movant alleges that, in fact, the
“packet” had come down days earlier and had nothing to do with the
delay in seeking the extension.

Movant was found guilty of the charges brought against him and was confined to
punitive solitary confinement for nine months. He also suffered the loss of
other privileges (see proposed claim, p.1, n. 1). While the instant
motion was pending, the Appellate Division, Third Department affirmed the
administrative determinations in an article 78 proceeding brought by the
claimant finding in relevant part that “petitioner has made no showing
that he was prejudiced as a result of the one-day delay between the expiration
of the first hearing extension and the request for the second hearing
extension” (Matter of Winfield v Carpenter, ___AD3d ___ [2008],
2008 WL 1969612).

Movant alleges that a notice of intention to file a claim was served on March
12, 2007 by certified mail, return receipt requested. In opposition to the
motion, the State acknowledges receipt of only a notice of intention relating
to a different claim (see State’s Exhibit B). Of course, if the
notice of intention relating to this claim was indeed served as contended, the
late claim relief requested is unnecessary as a claim for wrongful confinement
accrues upon termination of the confinement, which in this case occurred on an
unspecified date in September of 2007 (Santiago v City of Rochester, 19
AD3d 1061, 1062 [2005], lv denied 5 NY3d 710 [2005]; Ramirez v State
of New York, 171 Misc 2d 677 [1997]). However, the movant failed to
establish proper service of the notice of intention relating to the instant
proposed claim and the Court will therefore address the movant’s
application for late claim relief on the merits.

Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if
the applicable Statute of Limitations set forth in article 2 of the CPLR has not
expired, to allow the filing of a late claim upon consideration of the following
factors: "whether the delay in filing the claim was excusable; whether the
state had notice of the essential facts constituting the claim; whether the
state had an opportunity to investigate the circumstances underlying the claim;
whether the claim appears to be meritorious; whether the failure to file or
serve upon the attorney general a timely claim or to serve upon the attorney
general a notice of intention resulted in substantial prejudice to the state;
and whether the claimant has any other available remedy."

The first issue for determination upon a late claim motion is whether the
application is timely. Court of Claims Act § 10 (6) requires that a
motion to file a late claim be made "before an action asserting a like claim
against a citizen of the state would be barred under the provisions of article
two of the civil practice law and rules." Inasmuch as the proposed claim
asserts a cause of action for wrongful confinement based upon the intentional
conduct of the Hearing Officer, the one year statute of limitations contained in
CPLR § 215 (3) applies. A cause of action for wrongful confinement
accrues upon the termination of the confinement, which here occurred on an
unspecified date in September of 2007 (Santiago v City of Rochester,
supra; Ramirez v State of New York, supra). Movant's
application is therefore timely, having been made well within the applicable
statute of limitations.

Turning to the statutory factors, this Court has broad discretion in deciding a
motion to permit the late filing of a claim (Ledet v State of New York,
207 AD2d 965 [1994]). The statutory factors are not exhaustive nor is any one
factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117
[1991]). The most important factor is whether the potential claim has merit, as
it would be a futile exercise to permit litigation of a clearly baseless lawsuit
(Savino v State of New York, 199 AD2d 254 [1993]).

Movant asserts that the delay in filing the claim was attributable to the fact
that he was hospitalized from December 14, 2007 through December 31, 2007.
Movant does not set forth the reason for his hospitalization nor does he
otherwise explain why no claim was filed in the months preceding his
hospitalization. As a result, the Court does not find the movant’s excuse
for the delay reasonable.

The intertwined issues of notice, opportunity to investigate and prejudice to
the State will be considered together. Movant states in his supporting
affidavit that the State had prompt notice of the essential facts constituting
his claim by virtue of the administrative appeal from the hearing determination.
The State does not argue otherwise and it therefore appears that the State will
suffer no prejudice from the delay in filing the claim (cf. Lobel
Financial v State of New York, Ct Cl, August 2, 2000 [Claim No. 099833,
Motion No. M-61627; CM-61743, UID # 2000-015-052] Collins, J., unreported
[where State's alleged negligent act is memorialized in the documents of the
Department of Motor Vehicles no prejudice was apparent from the delay in filing
the claim]).

With respect to the required showing of merit, the claim is sufficiently
established if the movant demonstrates that the proposed claim is not "patently
groundless, frivolous, or legally defective" and there is reasonable cause to
believe that a valid cause of action exists (Matter of Santana v New York
State Thruway Auth., 92 Misc 2d 1,11 [1977]).

It is well-settled that conduct of correction employees taken in furtherance of
authorized disciplinary measures is quasi-judicial in nature and entitled to
absolute immunity (Arteaga v State of New York, 72 NY2d 212 [1988]).
Unlike qualified immunity, which shields the State from suit except when conduct
is taken in bad faith or without a reasonable basis, absolute immunity shields
the government from liability regardless of the reasonableness of the conduct
complained of or the motivation behind it (id. at 216). As stated by
the Court in Arteaga (at p. 220), important policy reasons underlie the
application of absolute immunity to the conduct of correction employees:

Because of the unquestioned risks to inmates, employees, and the public from a
breakdown in order and discipline in correctional facilities . . . it is
particularly important that correction officers not be dissuaded by the
possibility of litigation from making the difficult decisions which their duties
demand. Nor should correction personnel acting as reviewing officers feel
reluctant to reverse hearing determinations because doing so might expose the
State to liability.

The Arteaga Court was careful to point out, however, that giving full
immunity to the conduct of correction employees will not deprive inmates of
their right to recover damages for "unlawful actions of employees taken beyond
their authority or in violation of the governing rules and regulations"
(id. at 220).

Movant’s challenge to the propriety of the extensions of time to complete
the hearing fails to establish a violation of the governing rules and
regulations. The applicable regulation required the completion of the hearing
“within 14 days following the writing of the misbehavior report unless
otherwise authorized by the commissioner or his designee” (7 NYCRR
§ 251-5.1 [b] [emphasis added]). Here, there is no question but
that the delay in the completion of the hearing was authorized. While it does
appear that the extension was obtained one day after the 14th day for the
completion of the hearing had passed, nothing in the applicable regulation
prohibits this or otherwise specifies a date by which the extension must be
obtained. As a result, it can not be concluded that the extension obtained in
this case was improper.

While movant asserts that the bases for the requested extensions of time were
fabricated and “contrived”, the Court finds these facts, even if
true, of no significance. The governing regulation places no restrictions on
the circumstances under which the extensions of time may be granted, instead
leaving the decision to the discretion of the commissioner or his designee (7
NYCRR § § 251-5.1 [b]). In such a case immunity attaches even though
it may be later determined that such discretion was abused (Holloway v State
of New York, 285 AD2d 765, 766 [2001]). Thus, regardless of the reason for
the requested extension, the State is immune from liability. Accordingly,
movant’s challenge to the administrative determinations granting the
Hearing Officer’s requests for extensions of time to complete the hearing
provides no basis for liability.

For the foregoing reasons, the Court finds that the movant failed to establish
the potential merit of his claim.

As to the final factor to be considered, the existence of an alternative
remedy, movant challenged the administrative determination of guilt in a
proceeding pursuant to article 78 of the CPLR without success.

Consideration of the totality of factors set forth above leads this Court to
the conclusion that it would not be a proper exercise of discretion to allow the
claim to proceed.

To the extent the movant seeks permission to treat his notice of intention as a
claim, the request is denied. Court of Claims Act § 10 (8) states in
pertinent part that “[t]he court shall not grant such application unless .
. . the notice of intention was timely served, and contains facts sufficient to
constitute a claim . . . ". Here, the movant failed to overcome the
State’s showing that the notice of intention was not timely served.
Additionally, for the reasons set forth above the notice of intention, like the
proposed claim, fails to set forth facts sufficient to constitute a claim
(seeArtale v State of New York, 140 AD2d 919 [1988]; see also
Hodge v State of New York, 213 AD2d 766 [1995]).

Based on the foregoing, movant’s application for permission to file a
late claim or to treat his notice of intention as a claim is denied.

May 13, 2008Saratoga
Springs, New York

HON. FRANCIS T. COLLINSJudge of the Court of
Claims

The Court considered the following papers:

Notice of motion dated January 16, 2008;

Affidavit of Joaquin R. Winfield sworn to January 16, 2008 with exhibit;